II. Rejecting the patriarchal theory as untenable, and shrinking
from asserting the divine origin of government, lest they should
favor theocracy, and place secular society under the control of
the clergy, and thus disfranchise the laity, modern political
writers have sought to render government purely human, and
maintain that its origin is conventional, and that it is founded
in compact or agreement. Their theory originated in the
seventeenth century, and was predominant in the last century and
the first third of the present. It has been, and perhaps is yet,
generally accepted by American politicians and statesmen, at
least so far as they ever trouble their heads with the question
at all, which it must be confessed is not far.

The moral theologians of the Church have generally spoken of
government as a social pact or compact, and explained the
reciprocal rights and obligations of subjects and rulers by the
general law of contracts; but they have never held that
government originates in a voluntary agreement between the people
and their rulers, or between the several individuals composing
the community. They have never held that government has only a
conventional origin or authority. They have simply meant, by the
social compact, the mutual relations and reciprocal rights and
duties of princes and their subjects, as implied in the very
existence and nature of civil society. Where there are rights
and duties on each side, they treat the fact, not as an agreement
voluntarily entered into, and which creates them, but as a
compact which binds alike sovereign and subject; and in
determining whether either side has sinned or not, they inquire
whether either has broken the terms of the social compact. They
were engaged, not with the question whence does government derive
its authority, but with its nature, and the reciprocal rights and
duties of governors and the governed. The compact itself they
held was not voluntarily formed by the people themselves, either
individually or collectively, but was imposed by God, either
immediately, or mediately, through the law of nature. "Every
man," says Cicero, "is born in society, and remains there." They
held the
same, and maintained that every one born into society
contracts by that fact certain obligations to society, and
society certain obligations to him; for under the natural law,
every one has certain rights, as life, liberty, and the pursuit
of happiness, and owes certain duties to society for the
protection and assistance it affords him.

But modern political theorists have abused the phrase borrowed
from the theologians, and made it cover a political doctrine
which they would have been the last to accept. These theorists
or political speculators have imagined a state of nature
antecedently to civil society, in which men lived without
government, law, or manners, out of which they finally came by
entering into a voluntary agreement with some one of their number
to be king and to govern them, or with one another to submit to
the rule of the majority. Hobbes, the English materialist, is
among the earliest and most distinguished of the advocates of
this theory. He held that men lived, prior to the creation of
civil society, in a state of nature, in which all were equal, and
every one had an equal right to every thing, and to take any
thing on which he could lay his hands and was strong enough to
hold. There was no law but the will of the strongest. Hence,
the state of nature was a state of
continual
war. At length,
wearied and disgusted, men sighed for peace, and, with one
accord, said to the tallest, bravest, or ablest among them: Come,
be our king, our master, our sovereign lord, and govern us; we
surrender our natural rights and our natural independence to you,
with no other reserve or condition than that you maintain peace
among us, keep us from robbing and plundering one another or
cutting each other's throats.

Locke followed Hobbes, and asserted virtually the same theory,
but asserted it in the interests of liberty, as Hobbes had
asserted it in the interests of power. Rousseau, a citizen of
Geneva, followed in the next century with his Contrat Social, the
text-book of the French revolutionists--almost their Bible--and
put the finishing stroke to the theory. Hitherto the compact or
agreement had been assumed to be between the governor and the
governed; Rousseau supposes it to be between the people
themselves, or a compact to which the people are the only parties.
He adopts the theory of a state of nature in which men lived,
antecedently to their forming themselves into civil society,
without government or law. All men in that state were equal, and
each was independent and sovereign proprietor of himself. These
equal, independent, sovereign
individuals met, or are held to
have met, in convention, and entered into a compact with
themselves, each with all, and all with each, that they would
constitute government, and would each submit to the determination
and authority of the whole, practically of the fluctuating and
irresponsible majority. Civil society, the state, the
government, originates in this compact, and the government, as
Mr. Jefferson asserts in the Declaration of American
Independence, "derives its just powers from the consent of the
governed."

This theory, as so set forth, or as modified by asserting that
the individual delegates instead of surrendering his rights to
civil society, was generally adopted by the American people in
the last century, and is still the more prevalent theory with
those among them who happen to have any theory or opinion on the
subject. It is the political tradition of the country. The
state, as defined by the elder Adams, is held to be a voluntary
association of individuals. Individuals create civil society,
and may uncreate it whenever they judge it advisable. Prior to
the Southern Rebellion, nearly every American asserted with
Lafayette, "the sacred right of insurrection" or revolution, and
sympathized with insurrectionists, rebels, and revolutionists,
wherever they made their appearance. Loyalty was held to be the
correlative of royalty, treason was regarded as a virtue, and
traitors were honored, feasted, and eulogized as patriots, ardent
lovers of liberty, and champions of the people. The fearful
struggle of the nation against a rebellion which threatened its
very existence may have changed this.

That there is, or ever was, a state of nature such as the theory
assumes, may be questioned. Certainly nothing proves that it is,
or ever was, a real state. That there is a law of nature is
undeniable. All authorities in philosophy, morals, politics, and
jurisprudence assert it; the state assumes it as its own
immediate basis, and the codes of all nations are founded on it;
universal jurisprudence, the jus qentium of the Romans, embodies
it, and the courts recognize and administer it. It is the reason
and conscience of civil society, and every state acknowledges its
authority. But the law of nature is as much in force in civil
society as out of it. Civil law does not abrogate or supersede
natural law, but presupposes it, and supports itself on it as its
own ground and reason. As the natural law, which is only natural
justice and equity dictated by the reason common to all men,
persists in the civil law, municipal or
international, as its
informing soul, so does the state of nature persist in the civil
state, natural society in civil society, which simply develops,
applies, and protects it. Man in civil society is not out of
nature, but is in it--is in his most natural state; for society
is natural to him, and government is natural to society, and in
some form inseparable from it. The state of nature under the
natural law is not, as a separate state, an actual state, and
never was; but an abstraction, in which is considered, apart from
the concrete existence called society, what is derived
immediately from the natural law. But as abstractions have no
existence, out of the mind that forms them, the state of nature
has no actual existence in the world of reality as a separate
state.

But suppose with the theory the state of nature to have been a
real and separate state, in which men at first lived, there is
great difficulty in understanding how they ever got out of it.
Can a man divest himself of his nature, or lift himself above it?
Man is in his nature, and inseparable from it. If his primitive
state was his natural state, and if the political state is
supernatural, preternatural, or subnatural, how passed he alone,
by his own unaided powers, from the former to the latter? The
ancients,
who had lost the primitive tradition of creation,
asserted, indeed, the primitive man as springing from the earth,
and leading a mere animal life, living in eaves or hollow trees,
and feeding on roots and nuts, without speech, without science,
art, law, or sense of right and wrong; but prior to the
prevalence of the Epicurean philosophy, they never pretended,
that man could come out of that state alone by his own unaided
efforts. They ascribed the invention of language, art, and
science, the institution of civil society, government, and laws,
to the intervention of the gods. It remained for the
Epicureans--who, though unable, like their modern successors,
the Positivists or Developmentists, to believe in a first cause,
believed in effects without causes, or that things make or take
care of themselves--to assert that men could, by their own
unassisted efforts, or by the simple exercise of reason, come out
of the primitive state, and institute what in modern times is
called civilta, civility, or civilization.

The partisans of this theory of the state of nature from which
men have emerged by the voluntary and deliberate formation of
civil society, forget that if government is not the sole
condition, it is one of the essential conditions of progress.
The only progressive nations are
civilized or republican nations.
Savage and barbarous tribes are unprogressive. Ages on ages roll
over them without changing any thing in their state; and Niebuhr
has well remarked with others, that history records no instance
of a savage tribe or people having become civilized by its own
spontaneous or indigenous efforts. If savage tribes have ever
become civilized, it has been by influences from abroad, by the
aid of men already civilized, through conquest, colonies, or
missionaries; never by their own indigenous efforts, nor even by
commerce, as is so confidently asserted in this mercantile age.
Nothing in all history indicates the ability of a savage people
to pass of itself from the savage state to the civilized. But
the primitive man, as described by Horace in his Satires, and
asserted by Hobbes, Locke, Rousseau, and others, is far below the
savage. The lowest, most degraded, and most debased savage tribe
that has yet been discovered has at least some rude outlines or
feeble reminiscences of a social state, of government, morals,
law, and religion, for even in superstition the most gross there
is a reminiscence of true religion; but the people in the alleged
state of nature have none.

The advocates of the theory deceive themselves by transporting
into their imaginary
state of nature the views, habits, and
capacities of the civilized man. It is, perhaps, not difficult
for men who have been civilized, who have the intelligence, the
arts, the affections, and the habits of civilization, if deprived
by some great social convulsion of society, and thrown back on
the so-called state of nature, or cast away on some uninhabited
island in the ocean, and cut off from all intercourse with the
rest of mankind, to reconstruct civil society, and re-establish
and maintain civil government. They are civilized men, and bear
civil society in their own life. But these are no
representatives of the primitive man in the alleged state of
nature. These primitive men have no experience, no knowledge, no
conception even of civilized life, or of any state superior to
that in which they have thus far lived. How then can they,
since, on the theory, civil society has no root in nature, but is
a purely artificial creation, even conceive of civilization,
much less realize it?

These theorists, as theorists always do, fail to make a complete
abstraction of the civilized state, and conclude from what they
feel they could do in case civil society were broken up, what
men may do and have done in a state of nature. Men cannot divest
themselves of
themselves, and, whatever their efforts to do it,
they think, reason, and act as they are.

Every writer, whatever else he writes, writes himself. The
advocates of the theory, to have made their abstraction complete,
should have presented their primitive man as below the lowest
known savage, unprogressive, and in himself incapable of
developing any progressive energy. Unprogressive, and, without
foreign assistance, incapable of progress, how is it possible for
your primitive man to pass, by his own unassisted efforts, from
the alleged state of nature to that of civilization, of which he
has no conception, and towards which no innate desire, no
instinct, no divine inspiration pushes him?

But even if, by some happy inspiration, hardly supposable without
supernatural intervention repudiated by the theory--if by some
happy inspiration, a rare individual should so far rise above the
state of nature as to conceive of civil society and of civil
government, how could he carry his conception into execution?
Conception is always easier than its realization, and between the
design and its execution there is always a weary distance. The
poetry of all nations is a wail over unrealized ideals. It is
little that even the wisest and most potent statesman can realize
of what he conceives to
be necessary for the state: political,
legislative or judicial reforms, even when loudly demanded, and
favored by authority, are hard to be effected, and not seldom
generations come and go without effecting them. The republics of
Plato, Sir Thomas More, Campanella, Harrington, as the
communities of Robert Owen and M. Cabet, remain Utopias, not
solely because intrinsically absurd, though so in fact, but
chiefly because they are innovations, have no support in
experience, and require for their realization the modes of
thought, habits, manners, character, life, which only their
introduction and realization can supply. So to be able to
execute the design of passing from the supposed state of nature
to civilization, the reformer would need the intelligence, the
habits, and characters in the public which are not possible
without civilization itself. Some philosophers suppose men have
invented language, forgetting that it requires language to give
the ability to invent language.

Men are little moved by mere reasoning, however clear and
convincing it may be. They are moved by their affections,
passions, instincts, and habits. Routine is more powerful with
them than logic. A few are greedy of novelties, and are always
for trying experiments;
but the great body of the people of all
nations have an invincible repugnance to abandon what they know
for what they know not. They are, to a great extent, the slaves
of their own vis inertiae, and will not make the necessary
exertion to change their existing mode of life, even for a
better. Interest itself is powerless before their indolence,
prejudice, habits, and usages. Never were philosophers more
ignorant of human nature than they, so numerous in the last
century, who imagined that men can be always moved by a sense of
interest, and that enlightened self-interest, L'interet bien
entendu, suffices to found and sustain the state. No reform, no
change in the constitution of government or of society, whatever
the advantages it may promise, can be successful, if introduced,
unless it has its root or germ in the past. Man is never a
creator; he can only develop and continue, because he is himself
a creature, and only a second cause. The children of Israel,
when they encountered the privations of the wilderness that lay
between them and the promised land flowing with milk and honey,
fainted in spirit, and begged Moses to lead them back to Egypt,
and permit them to return to slavery.

In the alleged state of nature, as the philosophers describe it,
there is no germ of
civilization,
and the transition to civil
society would not be a development, but a complete rupture with
the past, and an entire new creation. When it is with the
greatest difficulty that necessary reforms are introduced in old
and highly civilized nations and when it can seldom be done at
all without terrible political and social convulsions, how can we
suppose men without society, and knowing nothing of it, can
deliberately, and, as it were, with "malice aforethought," found
society? Without government, and destitute alike of habits of
obedience and habits of command, how can they initiate,
establish, and sustain government? To suppose it, would be to
suppose that men in a state of nature, without culture, without
science, without any of the arts, even the most simple and
necessary, are infinitely superior to the men formed under the
most advanced civilization. Was Rousseau right in asserting
civilization as a fall, as a deterioration of the race?

But suppose the state of nature, even suppose that men, by some
miracle or other, can get out of it and found civil society, the
origin of government as authority in compact is not yet
established. According to the theory, the rights of civil
society are derived from the rights of the individuals who form
or enter into
the compact. But individuals cannot give what they
have not, and no individual has in himself the right to govern
another. By the law of nature all men have equal rights, are
equals, and equals have no authority one over another. Nor has
an individual the sovereign right even to himself, or the right
to dispose of himself as he pleases. Man is not God,
independent, self-existing and self-sufficing. He is dependent,
and dependent not only on his Maker, but on his fellow-men, on
society, and even on nature, or the material world. That on
which he depends in the measure in which be depends on it,
contributes to his existence, to his life, and to his well-being,
and has, by virtue of its contribution, a right in him and to
him; and hence it is that nothing is more painful to the proud
spirit than to receive a favor that lays him under an obligation
to another. The right of that on which man depends, and by
communion with which he lives, limits his own right over himself.

Man does not depend exclusively on society, for it is not his
only medium of communion with God, and therefore its right to him
is neither absolute nor unlimited; but still be depends on it,
lives in it, and cannot live without it. It has, then, certain
lights over him, and
he cannot enter into any compact, league, or
alliance that society does not authorize, or at least permit.
These rights of society override his rights to himself, and he
can neither surrender them nor delegate them. Other rights, as
the rights of religion and property, which are held directly from
God and nature, and which are independent of society, are
included in what are called the natural rights of man; and these
rights cannot be surrendered in forming civil society, for they
are rights of man only before civil society, and therefore not
his to cede, and because they are precisely the rights that
government is bound to respect and protect. The compact, then,
cannot be formed as pretended, for the only rights individuals
could delegate or surrender to society to constitute the sum of
the rights of government are hers already, and those which are
not hers are those which cannot be delegated or surrendered, and
in the free and full enjoyment of which, it is the duty, the
chief end of government to protect each and every individual.

The convention not only is not a fact, but individuals have no
authority without society, to meet in convention, and enter into
the alleged compact, because they are not independent, sovereign
individuals. But pass over this:
suppose
the convention, suppose
the compact, it must still be conceded that it binds and can bind
only those who voluntarily and deliberately enter into it. This
is conceded by Mr. Jefferson and the American Congress of l776,
in the assertion that government derives its "just powers from
the consent of the governed." This consent, as the matter is one
of life and death, must be free, deliberate, formal, explicit,
not simply an assumed, implied, or constructive consent. It must
be given personally, and not by one for another without his
express authority.

It is usual to infer the consent or the acceptance of the terms
of the compact from the silence of the individual, and also from
his continued residence in the country and submission to its
government. But residence is no evidence of consent, because it
may be a matter of necessity. The individual may be unable to
emigrate, if he would; and by what right can individuals form an
agreement to which I must consent or else migrate to some strange
land?

Can my consent, under such circumstances, even if given, be any
thing but a forced consent, a consent given under duress, and
therefore invalid? Nothing can be inferred from one's silence,
for he may have many reasons for being
silent besides approval of
the government. He may be silent because speech would avail
nothing; because to protest might be dangerous--cost him his
liberty, if not his life; because he sees and knows nothing
better, and is ignorant that he has any choice in the case; or
because, as very likely is the fact with the majority, he has
never for moment thought of the matter, or ever had his attention
called to it, and has no mind on the subject.

But however this may be, there certainly must be excluded from
the compact or obligation to obey the government created by it
all the women of a nation, all the children too young to be
capable of giving their consent, and all who are too ignorant,
too weak of mind to be able to understand the terms of the
contract. These several classes cannot be less than three-fourths
of the population of any country. What is to be done with them?
Leave them without government? Extend the power of the
government over them? By what right? Government derives its
just powers from the consent of the governed, and that consent
they have not given. Whence does one-fourth of the population
get its right to govern the other three-fourths?

But what is to be done with the rights of
minorities? Is the
rule of unanimity to be insisted on in the convention and in the
government, when it goes into operation? Unanimity is
impracticable, for where there are many men there will be
differences of opinion. The rule of unanimity gives to each
individual a veto on the whole proceeding, which was the grand
defect of the Polish constitution. Each member of the Polish
Diet, which included the whole body of the nobility, had an
absolute veto, and could, alone, arrest the whole action of the
government. Will you substitute the rule of the majority, and
say the majority must govern? By what right? It is agreed to in
the convention. Unanimously, or only by a majority? The right
of the majority to have their will is, on the social compact
theory, a conventional right, and therefore cannot come into play
before the convention is completed, or the social compact is
framed and accepted. How, in settling the terms of the compact,
will you proceed? By majorities? But suppose a minority
objects, and demands two-thirds, three-fourths, or four-fifths,
and votes against the majority rule, which is carried only by a
simple plurality of votes, will the proceedings of the convention
bind the dissenting minority?
What gives to the majority the
right to govern the minority who dissent from its action?

On the supposition that society has rights not derived from
individuals, and which are intrusted to the government, there is
a good reason why the majority should prevail within the
legitimate sphere of government, because the majority is the best
representative practicable of society itself; and if the
constitution secures to minorities and dissenting individuals
their natural rights and their equal rights as citizens, they
have no just cause of complaint, for the majority in such case
has no power to tyrannize over them or to oppress them. But the
theory under examination denies that society has any rights
except such as it derives from individuals who all have equal
rights. According to it, society is itself conventional, and
created by free, independent, equal, sovereign individuals.
Society is a congress of sovereigns, in which no one has
authority over another, and no one can be rightfully forced to
submit to any decree against his will. In such a congress the
rule of the majority is manifestly improper, illegitimate, and
invalid, unless adopted by unanimous consent.

But this is not all. The individual is always the equal of
himself, and if the government
63
derives its powers from the
consent of the governed, he governs in the government, and parts
with none of his original sovereignty. The government is not his
master, but his agent, as the principal only delegates, not
surrenders, his rights and powers to the agent. He is free at
any time he pleases to recall the powers he has delegated, to
give new instructions, or to dismiss him. The sovereignty of the
individual survives the compact, and persists through all the
acts of his agent, the government. He must, then, be free to
withdraw from the compact whenever be judges it advisable.
Secession is perfectly legitimate if government is simply a
contract between equals. The disaffected, the criminal, the
thief the government would send to prison, or the murderer it
would hang, would be very likely to revoke his consent, and to
secede from the state. Any number of individuals large enough to
count a majority among themselves, indisposed to pay the
government taxes, or to perform the military service exacted,
might hold a convention, adopt a secession ordinance, and declare
themselves a free, independent, sovereign state, and bid defiance
to the tax-collector and the provost-marshall, and that, too,
without forfeiting their estates or changing their domicile.
Would
the government employ military force to coerce them back to
their allegiance? By what right? Government is their agent,
their creature, and no man owes allegiance to his own agent, or
creature.

The compact could bind only temporarily, and could at any moment
be dissolved. Mr. Jefferson saw this, and very consistently
maintained that one generation has no power to bind another; and,
as if this was not enough, he asserted the right of revolution,
and gave it as his opinion that in every nation a revolution once
in every generation is desirable, that is, according to his
reckoning, once every nineteen years. The doctrine that one
generation has no power to bind its successor is not only a
logical conclusion from the theory that governments derive their
just powers from the consent of the governed, since a generation
cannot give its consent before it is born, but is very convenient
for a nation that has contracted a large national debt; yet,
perhaps, not so convenient to the public creditor, since the new
generation may take it into its head not to assume or discharge
the obligations of its predecessor, but to repudiate them. No
man, certainly, can contract for any one but himself; and how
then can the son be bound, without his own personal or
individual
consent, freely given, by the obligations entered into by his
father?

The social compact is necessarily limited to the individuals who
form it, and as necessarily, unless renewed, expires with them.
It thus creates no state, no political corporation, which
survives in all its rights and powers, though individuals die.
The state is on this theory a voluntary association, and in
principle, except that it is not a secret society, in no respect
differs from the Carbonari, or the Knights of the Golden Circle.
When Orsini attempted to execute the sentence of death on the
Emperor of the French, in obedience to the order of the
Carbonari, of which the Emperor was a member, he was, if the
theory of the origin of government in compact be true, no more an
assassin than was the officer who executed on the gallows the
rebel spies and incendiaries Beal and Kennedy.

Certain it is that the alleged social compact has in it no social
or civil element. It does not and cannot create society. It can
give only an aggregation of individuals, and society is not an
aggregation nor even an organization of individuals. It is an
organism, and individuals live in its life as well as it in
theirs. There is a real living solidarity, which makes
individuals members of the social body, and members one
of another.
There is no society without individuals, and there are no
individuals without society; but in society there is that which
is not individual, and is more than all individuals. The social
compact is an attempt to substitute for this real living
solidarity, which gives to society at once unity of life and
diversity of members, an artificial solidarity, a fictitious
unity for a real unity, and membership by contract for real
living membership, a cork leg for that which nature herself gives.
Real government has its ground in this real living solidarity,
and represents the social element, which is not individual, but
above all individuals, as man is above men. But the theory
substitutes a simple agency for government, and makes each
individual its principal. It is an abuse of language to call
this agency a government. It has no one feature or element of
government. It has only an artificial unity, based on diversity;
its authority is only personal, individual, and in no sense a
public authority, representing a public will, a public right, or
a public interest. In no country could government be adopted and
sustained if men were left to the wisdom or justness of their
theories, or in the general affairs of life, acted on them.
Society, and government as representing society, has a real
existence, life,
faculties,
and organs of its own, not derived or
derivable from individuals. As well might it be maintained that
the human body consists in and derives all its life from the
particles of matter it assimilates from its food, and which are
constantly escaping as to maintain that society derives its life,
or government its powers, from individuals. No mechanical
aggregation of brute matter can make a living body, if there is
no living and assimilating principle within; and no aggregation
of individuals, however closely bound together by pacts or oaths,
can make society where there is no informing social principle
that aggregates and assimilates them to a living body, or produce
that mystic existence called a state or commonwealth.

The origin of government in the Contrat Social supposes the
nation to be a purely personal affair. It gives the government
no territorial status, and clothes it with no territorial rights
or jurisdiction. The government that could so originate would be,
if any thing, a barbaric, not a republican government. It has
only the rights conferred on it, surrendered or delegated to it
by individuals, and therefore, at best, only individual rights.
Individuals can confer only such rights as they have in the
supposed state of nature. In that state there is
neither private nor public domain. The earth in
that state is not property, and is open to the first occupant,
and the occupant can lay no claim to any more than he actually
occupies. Whence, then, does government derive its territorial
jurisdiction, and its right of eminent domain claimed by all
national governments? Whence its title to vacant or unoccupied
lands? How does any particular government fix its territorial
boundaries, and obtain the right to prescribe who may occupy, and
on what conditions the vacant lands within those boundaries?
Whence does it get its jurisdiction of navigable rivers, lakes,
bays, and the seaboard within its territorial limits, as
appertaining to its domain? Here are rights that it could not
have derived from individuals, for individuals never possessed
them in the so-called state of nature. The concocters of the
theory evidently overlooked these rights, or considered them of
no importance. They seem never to have contemplated the
existence of territorial states, or the division of mankind into
nations fixed to the soil. They seem not to have supposed the
earth could be appropriated; and, indeed, many of their followers
pretend that it cannot be, and that the public lands of a nation
are open lands, and whoso chooses may occupy
them, without leave
asked of the national authority or granted. The American people
retain more than one reminiscence of the nomadic and predatory
habits of their Teutonic or Scythian ancestors before they
settled on the banks of the Don or the Danube, on the Northern
Ocean, in Scania, or came in contact with the Graeco-Roman
civilization.

Yet mankind are divided into nations, and all civilized nations
are fixed to the soil. The territory is defined, and is the
domain of the state, from which all private proprietors hold
their title-deeds. Individual proprietors hold under the state,
and often hold more, than they occupy; but it retains in all
private estates the eminent domain, and prohibits the alienation
of land to one who is not a citizen. It defends its domain, its
public unoccupied lauds, and the lands owned by private
individuals, against all foreign powers. Now whence, if
government has only the rights ceded it by individuals, does it
get this domain, and hold the right to treat settlers on even
its unoccupied lands as trespassers? In the state of nature the
territorial rights of individuals, if any they have, are
restricted to the portion of land they occupy with their rude
culture, and with their flocks and herds, and in civilized
nations to what they
hold from the state, and, therefore, the
right as held and defended by all nations, and without which the
nation has no status, no fixed dwelling, and is and can be no
state, could never have been derived from individuals. The
earliest notices of Rome show the city in possession of the
sacred territory, to which the state and all political power are
attached. Whence did Rome become a landholder, and the
governing people a territorial people? Whence does any nation
become a territorial nation and lord of the domain? Certainly
never by the cession of individuals, and hence no civilized
government ever did or could originate in the so-called social
compact.